This
discovery order resolves a dispute over Plaintiff's
request for Defendant's “Service Alignment”
Materials (the “SA Materials”). Plaintiff Gloria
Runton seeks these materials from Defendant Brookdale Senior
Living, Inc., a Tennessee corporation that owns and operates
more than 120 assisted living facilities in Florida.
Defendant asserts three reasons why it believes the SA
Materials in dispute should not be produced to Ms. Runton
(who is a resident at the Brookdale Bayshore facility in
Tampa): (1) Ms. Runton violated Local Rule 26.1 by waiting
too long to bring the dispute to the Court's attention;
(2) the SA Materials -- the algorithms and source code, the
time studies, and certain portions of the SA training
Materials -- are not proportional to the needs of the case
because the theory underlying the request is different from,
and actually contrary to, the theory pled in the Complaint;
and (3) many of the materials constitute trade secrets, and
Plaintiff's intent to disclose the materials to its
expert would generate irreparable harm, even if produced
pursuant to a Court-ordered Confidentiality Protective Order.

With
the Undersigned's permission, Ms. Runton filed a
memorandum opposing Brookdale's trade secret privilege
assertion [ECF No. 94], Brookdale filed a memorandum in
support of its objection to producing the SA Materials [ECF
No. 101');">101');">101');">101], Ms. Runton filed a reply memorandum [ECF No. 105],
and Brookdale filed an affidavit confirming that Brookdale
has not produced trade secret materials in any litigation,
arbitration, or any other judicial or administrative
proceeding [ECF No. 108]. The Undersigned held a one and a
half-hour hearing on February 16, 2018 on this discovery
dispute. [ECF No. 106].

For
reasons outlined below, the Undersigned concludes that the
requested SA Materials are not discoverable because their
discovery does not meet the proportionality standard of
Federal Rule of Civil Procedure 26(b)(1). At bottom, the
so-called need for the discovery relates to Plaintiff's
newly-articulated theory, which is different from the
fundamental theory alleged in the Complaint. United States
District Judge Cecilia M. Altonaga recently entered an order
granting, in part, Brookdale's motion for judgment on the
pleadings and denying Plaintiff's request (embedded in a
memorandum, as opposed to being properly framed in an actual
motion) for leave to amend her Complaint. [ECF No. 97].
Therefore, Plaintiff's request is beyond the scope of
permissible discovery when evaluated by the claims actually
alleged in the Complaint, which, at this point, will
remain the operative pleading and will not
be amended.

Given
this assessment, the Undersigned does not need to evaluate
Brookdale's other two grounds for opposing the discovery
request.

Factual
Background

On May
11, 2017, shortly after filing the Complaint [ECF No. 1],
Plaintiff propounded document requests encompassing the SA
Materials. [ECF No. 94-5 (“First Document
Requests”), Request Nos. 3, 6, 9, 14-15]. Brookdale
served its Objections and Responses to the First Document
Requests, and expressly objected to production of the SA
Materials on the grounds of proportionality and trade secret.
[ECF No. 101');">101');">101');">101-1, Response Nos. 3, 6, 9, 14-15, 21]. Plaintiff
initially raised these objections to the Court at a hearing
on July 21, 2017, and the Court requested that the parties
submit source materials on the issue.

Subsequently,
the parties conducted extensive and detailed negotiations
regarding the scope and parameters of Brookdale's
production. These negotiations culminated in the execution of
two Memoranda of Understanding (“MOU”), and
Plaintiff declined to pursue the SA Materials at that time.

The
First MOU memorializes the parties' agreement that
Plaintiff would serve interrogatories regarding Service
Alignment in lieu of the various document requests that
sought the SA Materials. In exchange, Brookdale agreed to
produce, and then did produce certain documents. It later
provided interrogatory answers explaining how the Service
Alignment works, the variables, and how the output is used at
the facility level to guide staffing decisions.

Brookdale
also began producing the documents contemplated in the MOUs
on November 13, 2017, and it finished producing nearly all
documents by January 5, 2018. According to Brookdale, the
parties also scheduled the Rule 30(b)(6) deposition of
Brookdale's corporate representative for January 16, 2018
but Plaintiff's counsel unilaterally cancelled the
deposition less than two days before it was to occur and has
not rescheduled it. Brookdale contends that its
representative was “fully prepared to testify on
numerous Service Alignment topics.” [ECF No. 101');">101');">101');">101, p.
3].

Because
the Undersigned's proportionality analysis depends, in
significant part, on the relevance of the information at
issue, quoting relevant terms from the operative Complaint
will help in the evaluation.

Ms.
Runton alleges in the Complaint that Brookdale's online
and marketing materials are false and misleading. Those
representations promote a “detailed” resident
“assessment” program that “identifies the
‘specifics of [the resident's] level of care'
to ‘offer individually tailored personal care options
to perfectly suit their needs'” [ECF No. 1,
¶¶ 4-5] -- but Ms. Runton alleges that Brookdale
“does not use the results generated by its
‘Resident Assessment' system to determine or
provide staffing at its facilities.” [ECF No. 1, ¶
5]. In addition, Ms. Runton further contends that the
representations are false and misleading because, “on
the contrary, as a matter of corporate policy and standard
operating procedure, Brookdale staffs its facilities based on
pre-determined labor budgets designed to meet corporate
profit objectives.” [ECF No. 1, ¶ 5]. The
paragraph further alleges that Brookdale
“conceals” this fact. [ECF No. 1, ¶ 5].

Paragraph
78 of the Complaint alleges that

[t]he overriding claim presented by
Plaintiff and the Class is founded on the question of whether
Brookdale Senior Living, Inc.'s policy, practice and
common course of conduct of charging its residents based on
their assessed needs as determined by Brookdale's
Resident Assessment System while utterly disregarding
these assessed needs in staffing its facilities and,
instead, staffing based on corporate profit goals constitutes
an unfair or deceptive trade practice, violates applicable
statutes and violates public policy.

[ECF No. 1, ¶ 78 (emphasis added)].

Similarly,
Paragraph 78(b) of the Complaint alleges that the
“overriding claims” in the case include, as a
common issue of fact and law, whether Brookdale violated
Florida's Deceptive and Unfair Trade Practice Act by
“representing that its resident admission agreements
confer the right to services to meet resident's assessed
care needs when the actual services provided by Brookdale
do not involve or even consider the assessed
needs of its resident populations[.]” [ECF No. 1,
¶ 78(b) (emphasis added)].

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Continuing
with this same theme of the overriding claims, paragrap. 107
of the Complaint alleges that Ms. Runton reasonably expected
that “Brookdale would use the Resident Assessment
System to set and provide facility staffing based on the
amount of time Brookdale has itself determined is necessary
to provide the care required for care needs established by
its resident assessments.” [ECF No. 1, ¶ 107].
This ...

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